I got conditional residence through stepfather, can I file I-751 if he and my mother have left U.S.?

A child does not have to rely on the mother's I-751 filing to go from conditional to permanent residence.

Question

My mother married a U.S. citizen about two years ago when I was 17 years old. He sponsored us for the green card and we got conditional residence in the United States. Now the time has come to file the I-751 form to remove the conditions of residence. But my mother and stepfather have moved to Senegal, and I don’t think they are going to file her I-751 even though they are still married. I don’t want to move to Senegal. I want to keep my green card and stay in the U.S and go to college. So can I still file the I-751?

Answer

First of all, you should make absolutely sure that your mother is unable to file her I-751, because you might not even need to file a separate I-751 if she files and includes you in her petition (as her “dependent child”). Even while living abroad, she may be able to file the form, so long as she can prove to immigration authorities that she has left the U.S. only temporarily (meaning, among other things, that she continues to maintain an address in the U.S. and plans to return at a future date).

If, however, your mother has permanently left the U.S., then filing your own I-751 makes sense. You will still need to obtain your stepfather’s signature on the petition, otherwise you would be required to apply for an “extreme hardship” waiver – which would make your case much more difficult.

Also: you will need to include in your filing a “full explanation” for why you are filing without your mother. The law does not say exactly what counts as a “full explanation,” but in your situation, this would mean describing in some detail the circumstances of your parents’ moving abroad, your intent to stay in the U.S., and other relevant factors.

The good thing is that, in the end, your eligibility for permanent residence should depend solely on your having a U.S. citizen stepparent, and not at all on whether your mother maintains her permanent resident status. Therefore, if you can support your I-751 with good evidence that your mother and stepfather were married in good faith before you turned 18, the petition should be granted, even if your mother never files on her own.

Nonetheless, you will need to act both quickly and carefully, because it appears that you are getting closer to turning 21. This is important because, if, for any reason your I-751 were denied after you turned 21, and you decided to reapply for the green card based on your having a U.S. citizen parent (be it your stepfather, or your mother if she became naturalized), then you would probably need to wait a long time before reacquiring your resident status. (Indeed, before age 21, the law considers you a “child” of a U.S. citizen, making you immediately eligible for a green card. But, after 21, it considers you a “son or daughter” of a U.S. citizen, subjecting you to numerical limits on admission.) Given these risks, you should seriously consider obtaining the assistance of an experienced immigration attorney in preparing your case.